ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Gregory F. Zoeller Stacy R. Uliana
Attorney General of Indiana Indianapolis, Indiana
Cynthia L. Ploughe
Deputy Attorney General
Indianapolis, Indiana
FILED
______________________________________________________________________________
May 26 2011, 2:52 pm
In the
CLERK
Indiana Supreme Court of the supreme court,
court of appeals and
tax court
_________________________________
No. 57S04-1010-CR-603
STATE OF INDIANA,
Appellant (Plaintiff below),
V.
JEFFREY BRUNNER,
Appellee (Defendant below).
_________________________________
Appeal from the Noble Superior Court, No. 57D01-9911-DF-260
The Honorable Robert E. Kirsch, Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, 57A04-1003-CR-121
_________________________________
May 26, 2011
David, Justice.
On the defendant’s motion, the trial court modified the defendant’s conviction several
years after the case had concluded. The Court of Appeals overturned the trial court on grounds
that the trial court lacked statutory authority to modify the conviction and ordered the original
conviction to be reinstated. We agree with the Court of Appeals and reverse the trial court’s
order. We hold it was in violation of statutory authority to modify the conviction. We remand to
the trial court to reinstate the original conviction.
Facts and Procedural History
In August 2000, Jeffrey D. Brunner entered a plea of guilty to operating while intoxicated
as a Class D felony. At the time of his guilty plea, Brunner had an OWI conviction within the
previous five years which elevated the matter to a Class D felony. Brunner also had an OWI
conviction from July 1991. When going over Brunner’s constitutional rights, the trial court
stated, “It is at least theoretically possible that a person found guilty of a Class D felony can have
judgment of conviction entered and be sentenced as if it were a Class A misdemeanor.” The
court further stated to Brunner, “Do you understand . . . If I accept [the plea agreement] I am
bound by it and I can’t change it up or down.” The court then accepted Brunner’s guilty plea and
immediately conducted the sentencing hearing.
Thereafter, Brunner filed letters with the court requesting his conviction as a Class D
felony be reduced to a Class A misdemeanor. In March 2009, the court held a hearing on
Brunner’s request for modification of the judgment of conviction from a Class D felony to a
Class A misdemeanor. At the hearing, Brunner requested the trial court modify his third OWI
felony conviction to a misdemeanor because he believed his felony conviction was preventing
him from obtaining a second job.1 Brunner neither served probation nor participated in any
substance abuse treatment, but he served four-and-a-half months on work release for his
sentence. At the March 2009 hearing, the trial court informed Brunner that it would be willing to
modify his sentence to a misdemeanor if Brunner would submit to a substance abuse-assessment
and complete any program of treatment or counseling recommended as a result of the
assessment.
At the follow up hearing in October 2009, Brunner informed the trial court his substance-
abuse assessment revealed he had no problems and provided no further recommendation for
counseling or treatment. At this hearing, Brunner also admitted to having a disorderly conduct
conviction from 2002. The trial court granted the motion to modify the judgment of conviction
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Brunner stated to the trial court, “I think that you know on all the, uh, when you bid for employment they ask if
you have a felony and of course I have to put yes and I think a lot of the jobs that I’ve gotten turned down, I know I
was qualified for, but the reason why I am getting turned down is because I have the felony still on my record. So,
that is the only reason that I am trying to get it lowered to a misdemeanor so it won’t come up on my record so I can
try to find some more employment.”
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from a Class D Felony to a Class A misdemeanor. On October 16, 2009, the trial court entered
an order titled “Modification of Conviction.” The order stated as follows:
Hearing held on the Defendant’s Petition for Modification of his Conviction on 8-
10-00, from a Class D Felony to a Class A Misdemeanor. The State appears by
Special Prosecuting Attorney, Clara Mary Winebrenner. The Defendant appears
in person and without Counsel. Evidence and arguments had and concluded. The
Court now modifies the judgment of conviction in this cause to Driving While
Intoxicated, Second or Subsequent Conviction, as a Class A Misdemeanor,
pursuant to Indiana Code 35-50-2-7(b).
We granted transfer to address issues of jurisdiction and law. We hold this matter was
properly pleaded under the statutes governing the modification of a conviction. We disagree
with the Court of Appeals holding that defendant’s request was a petition for post-conviction
relief; however, we agree with the Court of Appeals and hold that the trial court’s authority to
reduce a Class D felony conviction to a Class A misdemeanor is limited to the moment of
conviction and prior to sentencing.
I. State’s Right to Appeal
The Court of Appeals, sua sponte, raised the issue, which was then fully briefed by both
parties, whether the State had a right to appeal the trial court’s modification of conviction.
The action taken by Brunner was a motion for modification of conviction, not a request
for post-conviction relief. While reaching the correct conclusion, the Court of Appeals
mistakenly described this action as a request for post-conviction relief under Post-Conviction
Relief Rule 1(1)(a)(4), indicating there was evidence of material facts not previously presented
and heard that requires vacation of the conviction or sentence in the interest of justice. The post-
conviction relief rule cited by the Court of Appeals is not a catch-all mechanism allowing for the
introduction of new evidence that occurs after the conviction. The range of relief provided under
the post-conviction rules is limited to “issues that were not known at the time of the original trial
or that were not available on direct appeal.” Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind.
2000). This Court has held that “the purpose of the post-conviction remedies is to give the
appellant an opportunity to raise issues that were unknown or unavailable to him at the time of
his original appeal.” Henderson v. State, 271 Ind. 633, 634, 395 N.E.2d 224, 226 (1979). We
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have previously assigned a test for new evidence brought under Post-Conviction Relief Rule
1(1)(a)(4):
the petitioner must establish (1) that the evidence has been discovered since the
trial; (2) that it is material and relevant; (3) that it is not cumulative; (4) that it is
not merely impeaching; (5) that it is not privileged or incompetent; (6) that due
diligence was used to discover it in time for trial; (7) that the evidence is worthy
of credit; (8) that it can be produced upon a retrial of the case; and (9) that it will
probably produce a different result.
Torrence v. State, 263 Ind. 202, 206, 328 N.E.2d 214, 216 (1975) (quoting Emerson v. State, 259
Ind. 399, 407, 287 N.E.2d 867, 871–72 (1972)). Clearly the new evidence of Brunner’s recent
sobriety, while laudable, will not produce a different result at trial. He is still guilty of the crime
committed, and he has not produced evidence that would likely end in a different result of
conviction. The post-conviction rules do not apply to evidence of a person’s reformed character.
The post-conviction rules were not intended to give defendants a super-appeal. McCary v. State,
761 N.E.2d 389, 391 (Ind. 2002).
Further, a court that hears a post-conviction claim must make findings of fact and
conclusions of law on all issues presented. Ind. Post-Conviction Rule 1(6). Here the trial court
failed to issue findings of fact and conclusions of law. In sum, this matter was never pleaded as
a post-conviction petition, and the post-conviction rules do not allow for this type of evidence to
be submitted. At all stages, this matter proceeded as a motion for modification of conviction.
Neither the unrepresented pro se defendant Brunner, nor the prosecutor, nor the trial court
referred to this matter in the record as anything but a motion to modify conviction, which the
prosecutor argued the trial court had no authority to grant. The prosecutor was correct.
Indiana has a strict historic precedent that criminal appeals by the State are statutorily
defined. Indiana Code section 35-38-4-2 sets out the instances the State may appeal. The
legislature expressly enumerates the criminal appeals the State may take. The State may appeal
from orders (1) granting a motion to dismiss an indictment; (2) granting judgment for the
defendant upon his motion to discharge because of delay or jeopardy; (3) granting a motion to
correct errors; (4) upon question reserved the state if defendant is acquitted; (5) granting motion
to suppress evidence, if the effect is to preclude further prosecution; (6) and certain interlocutory
orders. Ind. Code § 35-38-4-2 (2008).
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We have long recognized this bedrock fundamental of criminal appellate law: the State
must have statutory authorization to bring an appeal of a criminal matter. The right of the State
to appeal in a criminal matter is statutory, and the State cannot appeal unless given that statutory
authorization by the legislature. State v. Huebner, 233 Ind. 566, 567, 122 N.E.2d 88, 89 (Ind.
1954). The reason for such a rigid appellate right for the State is built upon the idea that if the
State brings a citizen before its own tribunal and loses, “its avenging hand should be stayed
except in unusual cases where the power to appeal was expressly conferred.” State v. Sierp, 260
Ind. 57, 60, 292 N.E.2d 245, 246 (1973) (citing Carl V. Venters, Annotation, Right of
Prosecution To Review of Decision Quashing or Dismissing Indictment or Information, or
Sustaining Demurer Thereto, 92 A.L.R. 1137 (1934)). In Brunner’s instance, however, it is not
the State that has brought him back before the tribunal. Not this time. Rather, it is Brunner
himself who has petitioned the tribunal for favorable relief.
In Hardley v. State, this Court carved out a minor exception to the precedent of
legislature-authorized appeals for State criminal appeals. 905 N.E.2d 399, 403 (Ind. 2009). In
Hardley, the State was attempting to appeal an erroneous sentence, which is not enumerated
among the criminal appeals the State may take under Indiana Code section 35-38-4-2. This
Court succinctly held that it was clearly unacceptable for a sentence to plainly exceed or
otherwise violate statutory authority, and that “sound policy and judicial economy favor
permitting the State to present claims of illegal sentence on appeal when the issue is a pure
question of law that does not require resort to any evidence outside the appellate record.” Id.
In this case, the State has timely appealed a judgment entered by the trial court modifying
a conviction of defendant. The trial court took such action years after the issuance of the original
conviction, without the consent of the State, and as we hold today, without the statutory authority
to do so. Because the legislature did not provide the trial court the statutory authority to do this
and because this is a pure question of law that does not require evidence outside the record, we
hold that the State has the limited availability to appeal a trial court’s modification of conviction
under these particular circumstances.
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II. Modification of Conviction
Having determined the State’s right to appeal the matter, we now turn to the trial court’s
authority to issue the order modifying Brunner’s conviction. We agree with the State and the
Court of Appeals that the trial court improperly granted Brunner’s request. The applicable
statute at the time of the conviction was Indiana Code section 35-50-2-7 (1998). It states, in
relevant part, “if a person has committed a Class D felony, the court may enter judgment of
conviction of a Class A misdemeanor and sentence accordingly.” I.C. § 35-50-2-7(b). This is a
question of first impression which requires us to determine the intent of the legislature. We
review matters of statutory interpretation de novo because they present pure questions of law.
Gardiner v. State, 928 N.E.2d 194, 196 (Ind. 2010).
In interpreting statutes, we take words and phrases in their plain and usual meaning. I.C.
§ 1-1-4-1(1) (2005). As such, we hold that the intent of the legislature in granting authority to
the trial courts to reduce a Class D felony to a Class A misdemeanor was limited to the moment
the trial court first entered its judgment of conviction and before the trial court announced its
sentence.2 The Court of Appeals correctly ruled that the language of the statute itself described
the specific timeframe codified for this action was after the finding of a Class D felony but
before the pronouncement of a sentence, “the court may enter judgment of conviction . . . and
sentence accordingly.” I.C. § 35-50-2-7(b) (emphasis added). The judgment of conviction is
entered first, and then the sentence is handed down. The legislature has not granted the trial
court the authority to modify the conviction at any time other than while delivering the sentence.
In further support of this legislative interpretation is the axiom that, with very little exception, a
trial court no longer has authority over a defendant after the trial court issues its sentence. State
ex rel Abel v. Vigo Circuit Court, 462 N.E.2d 61, 63 (Ind. 1984).
We also agree with the Court of Appeals in its analysis of Indiana Code section 35-38-1-
1.5, which did not become effective until 2003 and thus is not applicable to Brunner specifically.
However, Indiana Code section 35-38-1-1.5 is instructive in determining the legislative intent
2
This is distinguishable from Gardiner v. State where the trial court also modified a conviction. In Gardiner, the
conviction was modified from a Class D felony to a Class A misdemeanor under provisions of the plea agreement.
928 N.E.2d at 197.
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behind Indiana Code section 35-50-2-7(b). It is a rule of statutory interpretation that “courts will
not presume the legislature intended to do a useless thing . . . .” N. Ind. Bank and Trust Co. v.
State Bd. of Finance, 457 N.E.2d 527, 532 (Ind. 1983). Thus, the legislature would not have
enacted Indiana Code section 35-38-1-1.5 except to allow for certain conviction modifications,
which previously were not authorized by the legislature. In relevant part, Indiana Code section
35-38-1-1.5 states as follows:
(a) A court may enter judgment of conviction as a Class D felony with the
express provision that the conviction will be converted to a conviction as a
Class A misdemeanor within three (3) years if the person fulfills certain
conditions. A court may enter a judgment of conviction as a Class D felony
with the express provision that the conviction will be converted to a
conviction as a Class A misdemeanor only if the person pleads guilty to a
Class D felony that qualifies for consideration as a Class A misdemeanor
under IC 35-50-2-7, and the following conditions are met:
(1) The prosecuting attorney consents.
(2) The person agrees to the conditions set by the court.
(b) For a judgment of conviction to be entered under subsection (a), the court, the
prosecuting attorney, and the person must all agree to the conditions set by the
court under subsection (a). Ind. Code § 35-38-1-1.5(a)–(b) (2008).
According to Indiana Code section 35-38-1-1.5, for a post-2003 conviction, the trial court
could enter a conviction as a misdemeanor, but it must be entered within three years of the entry
of judgment, all parties must agree to the conditions, and the defendant must meet those agreed
upon conditions. Our reading of these two statutes together furthers our belief that the trial court
had no authority to take the actions it took and modify Brunner’s conviction from a Class D
felony to a Class A misdemeanor without approval from the State. The facts before us are that
the State did not consent to this conviction modification, nothing was agreed upon by all parties
at the time of original sentencing, and more than three years had passed. In fact, the trial court
judge specifically told Brunner, “Do you understand . . . If I accept [the plea agreement] I am
bound by it and I can’t change it up or down.” Furthermore, if the trial court’s ruling were
allowed to stand, or any weight given to Indiana Code section 35-38-1-1.5, Brunner would
receive a benefit he would not be allowed to receive under Indiana Code section 35-38-1-1.5
because the three-year window for modification has long closed.
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Finally, we note the significant difference that exists between a Class D felony conviction
and a Class A misdemeanor. The sentence for a person convicted of a Class A misdemeanor is
up to one year in jail and up to a five-thousand-dollar fine. I.C. § 35-50-3-2 (2008). Meanwhile,
the sentence for a Class D felony is a fixed term between six months and three years, with an
advisory term of one-and-a-half years, and a fine of up to ten-thousand dollars. Id. § 35-50-2-7.
Even further, there exists a stigma in culture between misdemeanor convictions and felony
convictions. Often misdemeanor convictions are seen as college-aged high jinks or youthful
indiscretions that harmed no one. On the other hand, felonies are met with much more suspicion
and caution. As Brunner stated, most job applications question if an applicant has ever been
convicted of a felony, drawing a line between a felony and misdemeanor.
Although it may be equitable and desirable for the legislature to give a trial court
discretion in modifying a conviction years later for good behavior, we recognize at this time the
legislature has not given any such authority. It may be appropriate for a trial court judge to be
able to weigh mitigating and aggravating factors such as the hardship on the defendant’s family
in making a conviction-modification decision. One of the purposes of the discussion regarding
sentencing reform is to keep those offenders in prison that need to be in prison and to give more
favor to those offenders who deserve an earlier opportunity to be productive citizens. The trial
court believed it was assisting a defendant who had demonstrated he was worthy of an
opportunity to have his conviction modified. However, at this time, the legislature has not
enacted any such authority for the trial court.
Conclusion
The plain meaning of Indiana Code section 35-50-2-7(b), as well as the meaning taken in
context with Indiana Code section 35-38-1-1.5, shows that the trial court erred in granting
Brunner’s motion for modification of conviction. We reverse and remand with instructions for
the trial court to reinstate the original judgment of conviction.
Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.
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